Global democratization of military justice system. Why are mature democracies lagging behind?

Col. Michel W. Drapeau, CF (Ret)

As a quintessential institution of our democratic society, the military is subservient to the Rule of Law and subject to civil control. Yet, examples abound where the military brass in many of our democracies are openly resisting the introduction of necessary reforms to bring military justice in line with evolving concepts of human rights and justice in the free world. 

In many parts of the world important reforms are taking place, the result of the thirst for democratization, if not civilianization of military justice systems by emerging democracies or the result of successful appeals by the citizenry to  the European Court of Human Rights. Here and there, national legislatures are owning up to their responsibility for exercising civilian control over vast military bureaucracies and harnessing their insatiable appetite for autonomy and exclusive control over their traditional martial discipline system. 

In Canada, our military justice system is marking time, impervious to the changes taking place in much of the free world, in particular but not limited to countries such as the United Kingdom, Ireland, Australia and New Zealand, in the result that it is lagging behind.  Canadian military tribunals (summary trials and courts martial) which are, fundamentally, tribunals of exception are, in many respects operating in accordance with a vision of the world which has long been passé, yet they endure as if the military lives in a world of its own making. 

For instance, although findings and sentences imposed by these military tribunals should only be subject to review and appeal by a court of appeal, in Canada, summary trials, which can impose a period of detention of up to 30 days, are not subject to any  appeal.  This is suppose to make the Forces more operationally effective and efficient and achieve a higher degree of discipline. I hold a completely opposite view. Consider that in Canada's lilliputian armed forces nearly one out of every 35 members undergoes a summary trial annually. Surely this cannot be the hallmark of a professional, disciplined force or capable leadership at the unit level. 

Despite this impossibly high number of summary trials, years in years out, accused are denied a "right to counsel" and their trails take place without any defined Rules of Evidence. It is as if the leadership is thumbing its nose at worldwide advances and reforms in the democratization of military justice system. 

Worse, the notion of having senior officers, or members of cabinet, involved in the review or suspensions of findings and/or sentence pronounced by a court of law should be prohibited by the concept of separation of powers and the notion of judicial due process. Yet, such non-judicial persons are permitted to interfere with both the sentences and findings of  courts martial or summary trials. 

Given our political and military history, Canada should be seen as a leader, not a laggard, in the reformation and bureaucratization of its military justice system.